Norcan Industries Ltd. - v. -, 2017 SKPC 86

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2017 SKPC 086 Date: October 11, 2017 File: SC# 14 - 2017 Location: Moose Jaw _____________________________________________________________________________ Between: Norcan Industries Ltd. - and - Huseini Concrete and Paving Stone Ltd. Mr. Thomas Landry For the Plaintiff No one appeared For the Defendant ______________________________________________________________________________ JUDGMENT D. KOVATCH , J ______________________________________________________________________________ Background

[ 1 ] The plaintiff operates a business involved with the repair of trucks and other heavy duty equipment. The defendant operates a concrete and paving company. The defendant brought three different trucks to the plaintiff for repairs. Invoices were issued for the repairs on each truck. The defendant has picked up two of the vehicles, and the third remains in the possession of the plaintiff. There has been partial payment by the defendant on the three invoices. The plaintiff brings this action claiming judgment for the balance owing, plus interest and storage fees.

The Evidence [ 2 ] Work was done on these vehicles between approximately March 1, 2016 and the early part of July 2016. The plaintiff commenced this action in February 2017, and on May 1, 2017, His Honour Judge Rayner conducted a case management conference. At the conclusion of that conference, he set the trial for July 18, 2017, commencing at 9:30 a.m. in courtroom #2. On May 3, 2017, the Clerk of the Court wrote to both parties, stating at, in part: This is to remind you that your trial is set for July 18, 2017 at 9:30 a.m. at Provincial Court, 211 - 110 Ominica Street West, Moose Jaw, Saskatchewan .

In the original letter, the quoted passage was written in bold, black letters, and underlined. [ 3 ] On July 18, 2017 at 9:30 a.m., Mr. Landry was present for the plaintiff, with his witnesses, and prepared to proceed to trial. No one appeared for the defendant. I advised Mr. Landry that I had some questions regarding the amount of his damages. I suggested that he testify and prove the amount of damages. He did that, and I reserved my decision. This is the decision in the matter. [ 4 ] The first vehicle that the defendant brought to the plaintiff was a 1979 IHC gravel truck.

In his Dispute Note, the defendant says that he purchased this vehicle from out of province, and wanted to get it licenced to operate on Saskatchewan roads. He indicated that he needed to have repairs done on the vehicle in order for it to pass a safety inspection, and so that he could then get it licenced. On this basis alone, it would seem to me that the repairs required were fairly significant and extensive. In his Dispute Note, the defendant asserts that this work would be completed at a cost of $5,000.00.

It must be noted that there was nothing in writing fixing this sum, or indicating what would be done for this sum. [ 5 ] When Mr. Landry testified at trial, he indicated that he did give a verbal estimate regarding the cost. However, when they began the repair work, it became apparent that more significant repairs would be required. The plaintiff filed a very detailed invoice listing all of the repairs and charges for the gravel truck. Total labour charges are 60 hours at $96.00/hour for a total labour charge of $5,760.00.

Parts, incidentals and taxes then bring the total invoice to $9,160.62. [ 6 ] Before the work on the gravel truck could be completed, the defendant brought in a 2002 Ford F350 super duty truck for

repairs. The plaintiff did the work on this truck, and again issued a detailed invoice. This invoice indicated that total parts were installed for $1,472.03 and total labour was $1,344.00. Shop supplies and taxes brought the total invoice to $3,245.03. [ 7 ] The plaintiff completed the work on this second vehicle before work had been completed on the gravel truck. Meanwhile of course, the defendant had made some deposits on account.

As a result, when work was completed on the 2002 Ford truck, the plaintiff applied monies paid on account to the invoice for the Ford truck, marked it paid in full, and the defendant drove it away. [ 8 ] Lastly, during the course of the summer, the defendant purchased and brought a 2004 F350 Ford super duty truck to the plaintiff. With respect to this truck, the plaintiff inspected the vehicle and advised on the necessary repairs. He issued an invoice for 1.5 hours to inspect and provide this estimate.

The total amount of the invoice is $174.24. [ 9 ] It appears that when the work on the gravel truck was completed, the defendant was allowed to remove it from the plaintiff’s establishment. He has been in possession of it since that time and has utilized it in his business. However, it appears that the plaintiff and defendant then got into disagreement as to the total amounts owing on the invoices. As a result, the defendant did not authorize any repairs to be done on the 2004 F350 super duty truck.

Also, the defendant has never attended at the business establishment to pick up that vehicle. [ 10 ] It must be noted that the Plaintiff had a valid lien on the Defendant’s gravel truck when he concluded those repairs and remained in possession of that truck. That lien was extinguished when the Defendant was allowed to remove the truck from the Plaintiff’s business and use it thereafter.

I would infer from these facts, however, that the Defendant agreed to pay the Plaintiff’s reasonable charges for repair of the gravel truck. [ 11 ] As a result of all of the above, the plaintiff issued three invoices to the defendant for a total sum of $12,579.89 for repairs done. I am satisfied that the plaintiff could not and did not quote an exact figure for the cost of repairs. I am satisfied that his invoices are reasonable and that he is entitled to claim for the total amount of the invoices, less the total sum paid on account by the defendant.

It is clear that the defendant has paid a total sum of $9,900.00 to the plaintiff. As a result, the plaintiff is entitled to have judgment for the sum of $2,679.89, representing the balance owing on the invoices. [ 12 ] The plaintiff also advanced claims for interest at the rate of 2% per month, and a claim for $15.00/day storage charge for the time that he has kept the 2004 Ford truck. [ 13 ] I begin by dealing with the interest claim. The problem with this claim is that the plaintiff did not establish or have any agreement with the defendant for revolving credit and the payment of interest.

The three invoices mentioned above, say absolutely nothing about interest. In fact, it would appear that in January 2017, the plaintiff approached the Clerk of the Court requesting information on the commencement of this action. At that time, he wrote a formal demand letter. Also at that time, he put together detailed statements going back to June 2016, charging interest at 2% per month and charging storage fees for the truck.

It would appear that the first mention of interest charges or storage fees was in January, 2017. [ 14 ] All of this causes me to say that there is not now and never was an agreement that would allow the plaintiff to charge the defendant interest on outstanding accounts. The interest charges were simply tacked on by the plaintiff, because he was justifiably upset about the non-payment of his accounts.

[ 15 ] However justifiable the plaintiff was in being upset by non-payment of his accounts, he was not entitled to charge interest. In the case of Prince Albert Cooperative Association v Rybka , 2006 SKCA 136 , the Court of Appeal clearly established that an action for collection of an outstanding account is an action for breach of contract. The contract must clearly provide for the payment of interest on outstanding balances.

If this does not occur, then the defendant is not in breach of the contract by failing to pay interest, and the plaintiff cannot be awarded damages for breach of contract that did not occur. [ 16 ] Similarly, with respect to storage charges, the plaintiff must establish a customary business practice related to a storage charge, or have it clearly detailed in the contract. It has not been established that a storage charge is a customary business practice. There was no provision in the contract or agreement between the parties regarding storage fees.

As a result, I am not able to grant judgment for any storage fees. [ 17 ] It is clear from all of the above that the plaintiff is entitled to a monetary judgment for the balance owing on his invoices. It is also very clear that there is no justification for the defendant withholding or not making that payment. The Government of Saskatchewan has enacted The Pre-judgment Interest Act , SS 1984-85-86, c P-22.2 [ The Pre-judgment Interest Act ].

By enacting the legislation, the legislature has clearly recognized the unfairness that arises when a defendant unjustifiably withholds payment, and there is no provision for interest in the contract. In circumstances such as these, under this legislation, the Court is entitled to award interest calculated under The Pre-judgment Interest Act . It is clearly appropriate in this case. [ 18 ] As a result of all of the above, the plaintiff shall have judgment against the defendant in the sum of $2,679.89 together with interest under the Pre-judgment Interest Act from July 1, 2016 to the date of this judgment.

In addition, the plaintiff shall have its costs as follows:

a) the cost of issuing the summons in the amount of $88.00; b) $50.00 for the cost of service; and c) $30.00 for the cost of two corporate profiles. The total costs are fixed in the amount of $168.00. _____________________________ D. Kovatch, J